Transcript of Rivkin discussing states’ ability to check federal power

Steve Doocy, Host: How can states limit the federal government’s power? The Justice Department says, “our best case is the Supremacy Clause in the Constitution that says no state law should eclipse the federal law.” You realize that for instance, Maryland, one of a dozen states, is trying to rewrite the Constitution. How so?

David Rivkin: Well they are seriously considering having a Constitutional Convention, a constitution which, by the way, has been amended for a number of times to see if they can come up with more parliamentary revisions.

The point, Steve, is that it reflects a sentiment we see around the country which says, in addition to passing statutes, it pays from time to time to look at the most fundamental set-up which is the state constitution or the federal constitution and come up with things that really cure the problems that have arisen—including the one you mention which is a lack of balance between federal and state authority.

Doocy: David, you suggest they change things so that if two-thirds of states agree, they can suggest their own amendments to the Constitution, right? How would that work?

Rivkin: Yes, that is correct. In order to get there you would need to have a very targeted state convention or you need Congress to propose that amendment. The idea is to put states on the same level plane as Congress in coming up with specific targeted amendments.

To emphasize, this is very important, if states had this power today, you would put a real check, deterrence if you will, on the political class. I think, for example, Congress would have been less willing to push for unconstitutional health care reform if there was a way the states could come back and revist, for example, the commerce clause. Arizona would’ve been played very differently. It’s really a way of restoring the balance that has been unfortunately lost over the last several decades.

Rivkin: I believe it is going to actually happen. It’s something that states ought to be taking seriously. This is a cause that everybody who is concerned about expansion of federal power should endorse including the Tea Party movement, independents. To me this is nothing more than restoring the regional balance between the federal and states governments that the framers had in mind. And very important, it’s not just about states rights, because that word has acquired bad currency in some quarters. It’s about restoring individual liberty. Because remember individual liberty is to be protected by balancing federal and state power, not just from the Bill of Rights.